Authors

Document Type

Article

Publication Date

2008

Abstract

Today, as a sexual harassment plaintiff who failed to report harassment before bringing suit, you likely will fare better under the law if you submitted to your harasser and engaged in relations with him, than you would if you had passively resisted until you were driven out of your employment. This Article examines the law’s illogical preference for plaintiffs who acquiesced to the propositions of their supervisors over those who resisted harassment but nonetheless failed to report it. It explores the roots of such a preference in society, as well as its consequences. Ultimately, this Article asks critical questions that have not been asked before: why does the law view a victim’s failure to report harassment for almost any reason as a conscious choice whose consequences will almost invariably prove fatal to her legal claim, but view a plaintiff’s submission to her supervisor in order to retain her job as presumptively coerced? Is there a subconscious desire on the part of those crafting the law to alleviate from responsibility or to somehow “rescue” women deemed too powerless to resist the influence and allure of a male boss? How and why should outward indices of consent be discounted when a plaintiff alleges that she engaged in relations with her boss to maintain her status quo at work or to procure a promotion or a raise? This Article proposes that “the romance of patriarchal power” fuels not only the way in which victims respond to harassment, but also the way in which the law has responded to harassment claims. A woman in the workplace continually combats the culturally-pervasive notion that if she is lucky, she will somehow be “discovered,” “chosen,” or “rescued” by a powerful man. Why then, is anyone surprised that the law cannot resist swooping in to identify, insulate, and “rescue” a woman who has already identified herself as a victim and who has, more importantly, already compromised herself by buying into the fantasy so wholly that she was actually intimate with the man identified as her victimizer? In most cases, one’s failure to report harassment is no less coerced or constrained by financial and professional motivations than is one’s acquiescence to a supervisor’s advances. Just as a plaintiff can provide her employer with notice of her harassment to avoid further harm, so may a plaintiff stave off injury by reporting an advance before choosing to submit to it. The law should not infantilize women by treating certain plaintiffs as too compromised to function as accountable adults, while holding virtually all women who fail to report harassment to often super-human standards of care, courage, and wisdom.